The Massachusetts spy, or, Thomas's Boston journal. [volume], March 10, 1774, Image 1

About The Massachusetts spy, or, Thomas's Boston journal. [volume] (Boston [Mass.]) 1772-1775

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A Weekly, Political, and Commercial Paper Open to all Parties, but Influenced by None.
‘DO thou Great LIBERTY inspire oar Souls,—And make our Lives in thy Pofleflion happy, Or, our Deaths glorious in thy just Defenct.
Vol. IV.]
. From the PENNSYLVANIA PACKET.
“ Fr . Packman to be tore* of will of his Lrata>
T I will mt agree to it.—lt it a f/wr* not to be
found in all Littleton." Coke.
LETTER 11.
To the Judob of the High Cour't of
Admiralty at Philadelphia.
S I R»
PTOHERE is no occasion to make any apology for consider
ing you as the writer of a piece, publi/hed in the
Pennsylvania Packet left week, under the signature of Civis
in which an attempt wu made to vindicate your commiflion.
The stile and matter ar effectually betray the author to the
public, aa if his name had been subscribed to it.—lt is but
justice however to lay, that the decency and moderation, with
which it ia written, art worthy both of praise and imitation.
We fee dSfputes, especially where a man's interest is
so intimately concerned, conduced in a manner M little liable
to exception. No perfan can poflibly refpeft you more for
such behaviour than I do.
The controversy, Sir, feemt to Cum wholly on the follow
ing question ; namely, whether your commiflion does not
give you power to try many causes, both civil and criminal,
which ate, and ought to be, cognisable only in courts of
conmon law. In order to prove the affirmative of the quef
ton, I thought it the belt way, to afeertain the line of jurif
diflfon, between the courts of Admiralty in England, and
the General courts eftabliihed by the municipal laws of the
country. This line, as drawn in England, I endeavoured to
compare with that delineated in your commiflion. From
the companion I venture! co infer, that the lines were by
no means parallel.—This, however, you have thought proper
to contaft, and boldly infill, that there is no difference be
tween the Admiralty jurifdiaion, as exereifed at this day in
England, and that authorifed by your commiflion. The
authorities, however, which I cited out of the fourth inftt
tute, you are fa prudent as not to contrsdid, or even attempt
to explain away.—They fufliciently prove that the court of
Admiralty in England, bath no jurifdktion in any aflion with
regard to freight, charter parties, policies of insurance, bot
tomry bonds, fee—You only oppose to them “ a few pas-
Imcs trenfcribed” out of Beawca’s mercantile didfonary.
With regard M the firft of them, via. « that the admiralty
« hath jurifdidion in safes of freight, mariners wages, breach
* of charter parties, though made within the realm, if the
«« penalty be not demanded, and likewise, in case of build-
M ing, mending, laving, and viAuailing Ihips, fee. fa as the
“ suit be against the ihip, and not only against the parties,"
It is only ncceflary to observe, that the book there cited, I
mean x. Cmke, a 16, has no authority to support any such
thing. There is not indeed, as Ar as I could find, the Ie aft
foundation in all Croke’s reports, for the aflertion. Where
Beawes met with it, 1 am at a loft to tell, unleft it was in
Godolphin’s jurifaidhon of the Admiralty, or in Ridley’s
view of the civil law : Books, which are high enough in
their claims, fer the power of courts of Admiralty ; and
which have therefore been long since exploded as authoritier
on that head. But wherever it was taken from, it can only
be true, as far as it regards -mariner’s wages.* The
diftindbon that the Admiralty hath Jurifaiftion, in case of
a charter-party, so at the penalty be not demanded, is found
only among the advocate, for the extention of the civil law.
Sir Edward Coke, when he fays, that the Admiralty cannot
meddle with causes on charter-parties, is perfefWy silent as
to it: So indeed are all the other books of the common
law 5 and these, as a lawyer, you cannot but know, are
esteemed much better authorities in Welbninfter-Hall, than
Ridley, Godolphin or Beawes.
Your next authority is likewise ° traaftribed” from
the fame author, and is by him taken from Wood’s institute
of the civil law. With regard to the substance of it, I /hall
only fay, that it is rxprelsly contradifted by the books of the
common law in every article, except that of suing in the
Admiralty forfesmen's wages, and on the hypothecations.
It would be eodleh to multiply authorities on this head.—
It has been determined more than once, that a court of Ad
miralty cannot hold plea of any contrail under seal, ex
cept in the instance of an hypothecation. Hence it is, that
if sailors make any special agreement under seal, with regard
to the payment of their wages, they cannot afterwards re
cover them in a court of Admiralty. - !' This too, will serve
to /hew the futility of the diftindion you aim at, with re
fprit to charter-parties, which are always under seal. It
must be owned, indeed, there is a confufion, if not a contra
diAion, in fame of the law hooks, as to the object of the
jurifdiftion of a court of Admiralty in England. I have
not the leisure at present, nor indeed, would it suit the lim
its of a news-paper disquisition, to attempt to reconcile them.
Upon the whole, however, J cannot help thinking, that tlto
ger.real principle, vis. “ that the Admiralty hath no jOrif
« diffion where the contrafl is made on land, though it is
“to be executed on the sea ; or where it is
«< made at sea, and to be performed at land,” will appear to
every person in America (yourfeif excepted) to be the eftab
liihed rale of decision. J No doubt there may be an excep
tion to it, as in the common case of mariners filing tor wa
ges ; which is laid to be an indulgenceof the courts of com
mon law, from companion to sailors : And an indulgence
it moil certainly is; for whenever they are feed, it must not
he in a court of Admiralty ; but like other persons, they
must be feed at common law far the violation of their con
teafts. Though you have fa obligingly offered your aflift
anc-r to our /hip-wrights, and promised to get their “ dues
« for them in the txmpafs of a few days,” yet, 1 trail, even
you had a right to decide such causes, they have
• a Pere Sulin/an i Commentary on
Mayna Clarta, soc, who fayt, ” the next court that the
“ fcw of the land allews to proceed to (entente, without a
“ jury, a tie court of Admiralty, and that fer abjolute ne
“ ct'jity: For at tti jurifdillion it not allowed, at to arty
“ tbing that happen within the body of a county, except in
** one particular mftance, contract far faillcrt waret, but
** extends only to tainp dore on the sea, or at mc/t to c»n~
v made in foreign rountriet, (tbwgb tbit last a denied
a by the lawyert of our dayr, to Meng n them) there be
-11 ing ne place Jbcm whence a jury can care. “ 3ee
" Cem. icy, to the Jame purpefe.
■f Soli. p. ». J rd. toy*.
3 Sad. »4. j. B. Coat. icy. HA. j».
Or, Thomas’s Bolton Journal.
THURSDAY, March io, 1774.
too high a sense of the infinite superiority of the trial by jury
ever to commence an action in a court of admiralty. I can
not dismiss this part of the argument without citing an au
thority from one of the latest books of report. § A pilot
sued in the Admiralty fir piloting a veflel in theriver Thames
from Sea-Reach to Deptford. After hearing council, a
prohibition was ordered by the whole court ofcommon pleas :
and they exprefaly fay, “ there is ne instance to be found
M where the contrail was at land, and to do the work on
M board, within the body of fame county, that the common
« law courts have ever permitted the Admiralty to have
“ jurifdidion." This case alone is a fuflicieot answer to your as
sertion, that a court of Admiralty hath engnicancc in aftions
of debt for building or mending of /hipi. The reporter
adds, note, by flat, ic. Rich. i. ch. j. of all contrads and
things done, within the bodies of contrail;, as well by land
u by water, theAdmlral's court hath no jurildidlion.
The next part of the defence of your commiflion is per
feilly curious and new. You charge me with having con
founded the idea of crime and felony, and verv gravely as
sure us, that every crime does not include a felony. And
pray, what then ’—Have I said that every crime amounts
to a felony .’—Far from it, Sir, I have only laid, that under
the description of “ offences, fufpefird offences, and crimes,"
your commiflion gives you power to try all tliofe that are
recited in the flat, of Hen. eighth, and that, therefore, it ia
a virtual repeal of that law. It is evident to the common
fenfeof mankind, that the indefinite expreflions of “ offences,
fufpedted offences and crimes*” must include treason, robbery,
murder, piracy Acc, unless you can fuppofc they are not otiemes
or crimes. My conclufion,therefore, chat a suspending power
is aflumed by the Crown, /lands in full force against you. I
thank you for the candid acknowledgment, that the 18 of
Hen. 8. has altered the mode of trial for those capiyjof
fencos, and has directed it to be by juty—This
is agreed : And w also, that no Angle judge of AdmindLm
“ since that time, either in England or the colonies,
M to be veiled with such power.” 1 hope, Sir, you wiD napg
think me disposed to remark on trifles, when I observe, tn
this is very different from faying, that no judge is artua/M
veiled with such power.—Many thingp are often iontyff
miaifters and pulitidana, which most certainly ought notto
be done. Among them, I think, ihould be ranked the
flagrant violation of law in giving you, or any other man in
America, an authority which iupercedesnnadt of parliament.
Read your commiffinn over again » And if you are not loft
to yourfeif, and to yout country, you must be alarmed at its
contents.—You have authority given you (1 repeat it with
aftoniihment, and you ought to read it with horror) to try
“all offences, fafpedled offences, and crimes."— Treason,
murder, robbery, fee. are offences and crimes—You have,
therefore, power given you to try them.—ls not this rea
soning plain and unanswerable ’ —And does not your com
miflion therefore give you jurifiliflion to try causes and per
sons, which the statute law of England hath laid, /hall be
tried, not according to the principles aud practice of your
court, but according to the course of common law ’—But I
will not press you any further on this point.
Your next aflertion—that there can be no question as to
the power of the supreme court of this province to grant a
prohibition to /lay a cause in the Admiralty—appears to be
extremely groundless. The ad of the Aflembly only fays ”
that ths supreme court /hall exercise the jutifaiction. and
powers thereby granted concerning all and lingular the pre
mises, according to law, as folly and amply, to all intents
andpurpofes w hatfoever, as the justices of the courts ofKing’s
Bench, common pleas,and exchequer at Westminster, or any
of them, may or can do.” So that the court, by
this clause, can only exercise the powers granted therein, at
folly as the fame powers may be exereifed in any of the
courts of Westminster Hall. If you will take the trouble
of reading the proceeding daufes of the ad, I am fatiafied,
you will not find a word about a prohibition. There is in
deed a loose expreflion in the former part of it, “ that the
supreme court may iflue writs of habeas Corpus, certiorari,
and writs of error, and all remedial and other write," which,
at firft fight, seems to give them a power to iflue any writ
whatever. But as a lawyer, Sir, you cannot but know, that
the writs of prohibition, and mandamus are high prerogative
writs, ifluing only out of the courts at Westminster Hall.
This, all the law books which mention them, expressly
declare. Can it be supposed then, that the Kingin Council
would fufler any court in this province, merely from die
conftrudion of an ad of Aflembly, to exercise such a trans
cendent power ’-—The reverie is indeed highly probable.
TheAflembly certainly never dreamed of giving such power
to the supreme court, any more then they ever dreamed that
a judge would be eftabliihed at Philadelphia with the enor
mous powers of your commiflion : Other* ife they would
doubdefs have provided against the danger.—-I will submit
to your consideration as a lawyer, one more observation on
this head. It is an eftabliihed rule in the conltrudion of an
ad of parliament or an ad of aflembly that a description
which ipecifies persons or things of an inferior rank, ought
not to beextended by subsequent general word:, to them
that are fuperwr provided there are any of inferior rank to
fatisfy tjie words. || Now, Sir, let us apply this rule to
the case in band. Do you not know that the writs, which
the ad of aflembly mentions, are inferior to the high pre
rugative writs of prohibition, and mandamus, and that the
general words of all ocher remedial writs,'' cannot be construed
to include them, eipccially as there are a great many other
writs of an inferior nature to fatisfy those general words ?
On this authority alone, I may fafely rest my opinion. The
danger therefore, for wint of a power in this province to flop
the proceedidg» of a court of Admiralty, dill remains.
There is now only one other part of your defence to be
answer-d. The public are, no doubt much obli B ed by the
information you have given them, with regard to the mode
of receiving your salary. Permanent however as you aflure
us the fund of oil naval stores is, on which the payment of
your salary ultimately depends, (if you fhnuhi not be able
to levy by way of penalties an-1 forfeitures enough to pay it)
1 have been well informed, that it has already failed more
than otKt—lt is mod clear, that your interest requires you
should inercafe, as much as you esn, that flock out of which
your salary is “ in the firft place,” to be paid, in order more
§ x fFilfon 194.
I X lull. 165,166. 475. 137, 6*7. 3 T*.
, certainly to feture the payment of it. If both fourerr fail,
you must be the infer—there is no other way provided to pay
you. The penalties cannot fttidly be said to be the pro
perty of the crown. I key are exprefily appropriated, or
mortgaged, to the judges aa a feeuwry for their falaries—
and this, op doubt with a design to encourage them to their
duty. The Influence on the minds of fame judges arising
i from this interest, miy not perhaps be very great. But
there may poflibly be others, who are not so remarkable for
uncorruptcd virtue, and attachment to their country! For
the future therefore, cease to contend that you are not Con
cerned in condemnations made by yourfeif. You are plainly
interefed that the forfeitures and penalties fliould amount so
high, that your salary may be in no danger of diminution.
Your insinuation Shat 1 had looked only among news
papers for a copy of a commiflion from the high court of
Admiralty, conveys a sneer, altogether unworthy of your
character. You must therefore give me leave to look down
upon it.
Having thus finifhed my obfervatiom on the defence of
your commiflion, 1 frail add a few words in confirmation of
the objections made in a former letter. You have Sir, sr/-
omaljurifdiithn in causes arising within the provinces of
New-York, New-Jerfcy, Pennlylvania, the lower counties
on Delaware, Maryland and Virginia. Confequratly you
may call before you any person from the fartheft part of ei
ther of thole colonies, together with all the witnciles in the
cause; and for want of obedionce, may fine, imprison, and
flrip them of their estates. Under the appearance of exer
cising the power veiled in you by your commifli >n, you may
harrals the whuk country at your picafare. Nor can it be
pretended that a prohibition will be from one of the othfr
colomts, to flop your proceedings in this. As a judge, you
are, by no means, on * footing with the figa of the law
in England, to whom vou have thought proper to compare
yourielf. They du not held their commiflion*, during
pleafare, as you do, but during life, and nave belides, fixed
fal tries paid by the crown, 'llicy are not judges of both
law and sod, as you are. The Laws which it Is their duty
to execute, are calculated to prefcrve liberty, and property.
The laws, which you are appointed to execute, are cakulatod
to introduce tyranny, and arbitrary government.
The people in the colomes, Sir, are not yet fully apprised
of lite extent and danger of your commiflion. They will, ere
long, J hope, be fenfiblc efit.—lt is impoffiblc we can ever be
• free people, while such a coewniflion, as yours, is held over
our heato, which atone, without or sevenue-aft,
U fufficirat to proftrace all tha liberties of America at your
fact. Like the detested court of Star Chamber, you are
veiled with almost unlimited difcretfonary power. If you
do not trample upon our dearest rights and priviledges, it is
not because you want the power, but the will to do it—
Depend upon it, Sir, the Americans will not always submit
to hold their liberties by such a di/honourtblc tenure. They
have hitherto been attended with triumph and fuccefc, io
every ftrugglc against ufuraation and tyranny. Life itfelf,
is not worth preferring, if *« once funebder that certain
rule of living, by which we are secured in the enjoyment
of our prope-t ies, our liberties, and our periodl. Hut these
muftinevitably be Incontinual danger, while your commiflion
,is in existence ; fer in the words of Lord Camd-'n, “ the
DtscacTioN of a Wl' is the Law of Tv a amts."
RUSSEL.
For the MASSACHUSETTS SPY.
To CHRISTIAN PRINTERS.
The Good of the. People it the Supremy
Law tn e-uery Country, and they have a I
Di vi me Right to fat thii Lanu in execution. I
JiyTY text contains the original, hereditary, I
IVJL indefeafible right, of all mankind to H- I
forty.—Whoever opposes thia dottrine, or en- I
deavours to deprive any people of their divine I
right to liberty, is a traitor to his fellow men, I
and a rebel against God, who gave liberty |
with life to all his rational creatures. The I
laws of heaven, for the rule of human conduft, |
are, “ Love yonr neighbour as youHelf—What- j
soever you would that men should do to you, I
do ye so to them but these precepts have no I
effed upon the minds of unprincipled tyrants I
and traitors, therefore the Majesty of the peo
ple must arise to subdue such unfeeling villains I
who harden themselves in iniquity. The peo- r
pie have a divine command to exercise justice ]
and judgment epon such abandoned wretches, I
and bind them in M fetters of iron.” If the r
security of freedom should require Arms, it i
will be the duty of every man to gird on his [
armour, and he that hath no iword must even I
fell his coat to purchase one ! The plunder j
which our enemies daily get by their robberies I
will strongly ftinuilate them to persevere, and I
I do not expect that we fhail nd this country f
of all the baneful herd without funponnder ; |i
I hope therefore every man will be well pro- I
vided ; and lay out the money which was for- I
merly expended lor the noxious tea, to purchase II
arms ana ammunition. This is your indif- n
penfibleduty, my hearers, and I hope you will I
all with readings and f.rmncfs of mind pradife I
so important a duty. 1 obierve with great fa- |
tisfadion, that the Am-ricans have their eyes I
open, and are convinced that nothing but a 11
fom united stand will secure their rights from ||
the rapacky of our enemies; the mod lethargic |
minds are kindled into aidour, and none bu: b
pajfive fouls and those who hope to gain by H
their uxgodlirujs, give the least countenance to II
the enemies of liberty.
[Numb. 162;
God hath moll wonderfully fmikd upon
this country, a series of events have taken place
the year past remarkably favourable to our
rights ; tnators have been difeovered, wicked
plans and deep laid fehemes have been laid
open and defeated, the union of the colonies
strengthened, and the spirit of liberty greatly
increased, the American system of freedom is
compleated, the military art hath made fwift
progress, a new tribe of Aborigines has arisen,
whose warriors have already given proofs of
their valour in the cause of liberty ; and if the
cause should require it in any future time, we
doubt not but they will H take of" the ene
mies to this country.—U short, the afped of
liberty is bright and glorious in America, the
hand of God I trust is with us, and that he
will cause us to tread down our enemies, and
name we fhail triumph in Freedom 1
New-England, 1774; The Preacher.
J - - .
For the MASSACHUSETTS SPY.
Mr. Thomas*
IT was a matter of no final! furprixe, at a
late funeral, why the honourable his Majef
7’s Council, and the honourable House of
Representatives, did not walk in the proceftion*
as it seemed was their intention, by adjourning
the Court during the time, and repairing to
the house of the deceased : but when the reafoa
is given, that influenced their conduit at this
time, I think every one must be convinced of
the propriety of their behaviour, and freely
acknowledge, it was highly becoming gentle
men who not only con suit the interest, but the
honour and dignity of the province. The
tranfadion was as follows The porter
to the door of the room, where the above gen
tlemen, with a aumber of officers both of the
*““■ ■ y and Q—y, were fested and acquainted
them, that the relations were all gone and de
iired them to join the procession. Immediately
the a 1 arose from a great chair, in which
he had placed himfelf, and without any cere
mony walked out of the room, after whose
example the other of—s both superior and in
ferior crouded out, without any regard to the
honourable members of the court, and entirely
excluded them from proceeding in their propel
place. Such beliaviour must appear to any
man of fpiiit, to be highly affrontive, and no
doubt was designed as a mark of contempt and
difrefpeft to be offered to those worthy gentle*
men, however, it was looked upon in that light
I by them, and accordingly relented, as appears
I by their returning immediately to the Rate
house, through another street.
Thus it appears from the above relation of
the affair, which may be depended upon as
fad, that every petty o—r in the n—y thinks
he either has a right to take precedence of the
supreme authority in this province, or may in
sult the government* through its Reprefenta
fives, whenever he pleafcs, with impunity,
whether this dodrine will correspond with tne
I sentiments of the generality of yew readers,
I will not pretend to determine, but the beha
viour of these sons of Mars in this instance,
appears to me, to Le very presumptuous and
I arrogant. M.
I March '
BOSTON.
The House haring preriou< to the canying up the fan
' peadunent, acquainted the Governor of their Refehittor
and desired be would theft kt >n the Chair; hit Excelisuy
wm pieafed to font frem the following MtfUge, no.
« Gentlemen f the House of Reprefeeuatnes,
B Y your Meflage of yefteeday, you informed tu* da*
you bad resolved to imptudi Peter Oliver, Efe ; Chie?'
Justice of the Superior Court, fee. before the Governor end
Council of high crimes and tuifimteanan, and that you
had prepared the articles of impoachmant, and you prayei
that I would he in the Chair that you might tlren have an
opportunity of laying them before the Governor and Council.
* I know of no fpeciet of high crimes and tnifieoicano r
nor any offence against rhe law comm.tted within thi* pro
vince, let the rank or condition of the offender be what it
may, which it nut c.yn.iahie by feme judicitory or jufec*
torier, and I do not know thm the Governor and CouirJ
have a concurirot jurifoiafon with any jadicatory in criaum)
cases, or any authority to try and determine any species ot
hgh crime - and mifcemcamirj whatlievrr.
* If 1 ftould a&me a jurifdiaion, and witli the Council
cry otfendert against the law without authority gnmtcd by
the Cha ter or ly a lav cf the province in puriawfice of tor
Cha*trr, 1 /houio make myfetf liable to Solver before a jo
diertory which would tore engnixaner of my aftancr, and
his Majefty'* fabjeds wovM have just cause to comptoin cf
bring deprived ot a trial by jury, the general claim of Ent
lifr-ren rvrept in tbrie cases * hmr the lav may bare nvO
lyecial provififln to tire u*trary.